On April 11, 1990, EPA Administrative Law Judge Spencer
T. Nissen issued his decision the "Proceedings To Determine Whether To
Withdraw Approval of North Carolina's Hazardous Waste Management Program"
(attached).

When EPA first joined with the hazardous waste management
industry in starting these proceedings in 1987, we met with and wrote to
previous Administrator Lee Thomas and Assistant Administrator Winston Porter(1)
to advise them that these proceedings were probably illegal and were certainly
indicative of widespread corruption within the agency. Even more importantly,
however, it was promoting a policy of commercial hazardous waste management
which was contrary to the best interests of the United States. Opposition
to the proceedings were shared by many in Congress and the environmental
community and eventually, after months of agency review and analysis, in
December, 1988, Mr. Thomas brought a halt to the proceedings.

When Mr. Reilly became Administrator in 1989, he
was lobbied intensely by EPA Region IV and the hazardous waste management
industry to re-open the proceedings. We wrote to him
in a similar vein(2). Nevertheless,
after (as Mr. Reilly
admitted to the press) being lobbied by the CEO of Waste Management
Inc., Mr. Reilly decided to re-open the proceedings against North Carolina.

Because of the corruption involved in re-opening
these proceedings, we filed charges with the EPA Inspector General against
Administrator Reilly and Region IV Administrator Greer Tidwell(3).
The Inspector General's investigation proved to be a clumsy and blatant
cover-up, further demonstrating how far the rot had spread within EPA.
As a result, we and Richard Wagner of the Inspector General's Office filed
additional charges(4) which have been forwarded
to your committee for investigation.

This brings us to Judge Nissen's findings and the
purpose of this letter. Judge Nissen found against EPA and for North Carolina.
His 122 page decision is a rather sweeping rejection of almost every EPA/hazardous
waste management industry position. We think there are many aspects of
his findings which support our charges against the agency and we would
like to enumerate them here.

1 EPA has been intentionally misleading the public
by pretending that Mr. Reilly, by re-opening the proceedings,. was merely
continuing the process started by his predecessor, Lee Thomas. For example,
the Winston Salem Journal of May 12, 1989 says:

Reilly said that Thomas had simply put the hearing on hold
for further review and consultation with the congressmen who had objections.
"We have done that, and now we're going forward with the hearing," he said.

A similar lie was put out in the FEDERAL REGISTER(5).
However, Judge Nissen did not accept these stories. His finding(6)
was that:

Then Administrator Lee Thomas issued a policy memorandum on
December 22, 1988, which was interpreted within the Agency as requiring
or leading to the withdrawal or cancellation of the instant proceeding.

Why was it necessary for the agency to try to deceive the public? We believe
it was because the agency knew it was acting improperly in re-opening the
hearings and wanted to keep that fact from the public.

2. EPA gave to itself authority under 40 CFR 271.4
(a) and (b) (attached) to essentially preempt state laws which are more
stringent than EPA's and which interfere with the expansion of the commercial
hazardous waste management industry. Judge Nissen suggested that these
regulations were probably illegal because they ignored the clear message
from Congress in the Bumpers Amendment that allows states to adopt more
stringent hazardous waste laws than the federal program especially in regard
to siting of facilities(7). EPA had never
incorporated this law into its regulations while 271.4 was written without
any specific Congressional authority or mandate.

We believe that these machinations are a clear illustration
of the agency doing the bidding of the commercial hazardous waste industry
even to the point of drafting regulations which ignore the law and for
which there is no authority.

3. EPA claims that the proposed GSX facility, which
it was promoting, was environmentally adequate and, therefore, the North
Carolina law requiring more stringent environmental standards adds nothing
to the protection of human health and the environment. Judge Nissen disagreed
and found ample justification for North Carolina's more stringent standards(8).
In order for EPA to reach the conclusion that the North Carolina law was
unnecessary it had to ignore the advice of its own experts that the GSX
site was, in fact, a threat to the drinking water supply of Lumberton,
NC(9) Furthermore, several witnesses, including
EPA's own experts, testified that even the North Carolina law may not be
sufficiently stringent(10).

Clearly there must have been a tremendous motivation
for the agency to go to court and publicly defend an anti-environmental
line of reasoning which its own experts had refuted.

4. EPA violated its own prohibitions against the use
of dilution(11) as a waste treatment technique

5. EPA has almost no standards for siting hazardous
waste facilities but nevertheless they tried to prevent North Carolina
from having standards of their own(12).

6. EPA claimed that commercial hazardous waste facilities
are no different than non-commercial ones and should be treated no differently.
Judge Nissen's finding was that commercial hazardous waste facilities can
be far more dangerous than non-commercial facilities and a more stringent
standard for them is justified(13).

7. EPA claimed that North Carolina's standard is "arbitrary",
but the finding was that EPA's own standards are just as "arbitrary" as
it claims North Carolina's are(14).

8. The hazardous waste management industry and EPA
have been clamoring for uniform (i.e. favorable) treatment of commercial
hazardous waste management facilities throughout the country. However,
Judge Nissen said:

Although RCRA may be said to contemplate an integrated national
program for the management of hazardous waste with the federal requirements
as a floor, it does not demand uniformity of permit results(15).

9. EPA claimed that the real intent of North Carolina's
statute was to block the construction of any commercial hazardous waste
facility and that the state's assertion of an environmental protection
motive was a sham. The judge's finding was that EPA has no business looking
beyond the stated purpose of the law, which was to protect the environment(16).
We might add the two motives are not contradictory since the citizens living
near the proposed site feared for their health and environment if this
commercial facility were built, EPA's assurances notwithstanding.

Long before Judge Nissen gave his ruling, it was
obvious to any observer that EPA was conducting, or rather, being led,
in these proceedings by the hazardous waste management industry. We sat
in on one session of the proceedings on September 5, 1989. It was a sad
spectacle. The lawyer from the EPA Office of General Counsel was accompanied
only by lawyers for the waste management industry who did most of the talking
for him. Indeed, the industry lawyers seemed to be answering most of the
questions Judge Nissen addressed to EPA. Sitting on the other side, opposed
to the industry and EPA, we saw not only the attorneys for North Carolina,
but also two representatives of national environmental organizations, and
a representative of a grass-roots citizens group.

If, as EPA would have us believe, they are protecting
public health and the environment against, what they have labeled "the
onslaught of political influence", why is it that not one single environmental
organization has come out in support of EPA's position while many have
voiced opposition to it? The only support EPA has received is from the
waste management industry. It is in the interest of that industry, we believe,
that EPA has carried out this attack on North Carolina's health, environment
and sovereignty.

We feel that it is important to recognize and root
out the corruption within EPA, so that agency can be put on the right track
for controlling hazardous waste. The way the agency is proceeding is costing
the public a fortune in new superfund sites without solving the hazardous
waste problem. For decades, EPA (and even its predecessor agency, the Public
Health Service) has preached the necessity for waste reduction as the preferred
approach to hazardous waste management. Your own Congressional Office of
Technology Assessment has shown that hazardous waste can be considerably
reduced.(17)Yet
the agency continues to promote the profligate waste management practices
of the commercial waste management industry.

Hazardous waste is the business of the commercial
hazardous waste management industry. As a business, their income is produced
by taking in wastes through the gates of their facilities. The more the
better. Expense is incurred by treating the waste so as to protect human
health and the environment. A successful business maximizes income and
does everything it can to reduce expenses. These goals are just the opposite
of the goals of society and the stated goals of EPA, which are to reduce
hazardous wastes (hence income) and maximize protection of human health
and the environment (expenses)

Serious waste reduction would be the death of this
extremely profitable industry. This industry has gone to great lengths
to reduce their liabilities by passing the ultimate cost of their poor
waste management practices on to the public. But most relevant to the present
issue, they have used their considerable influence, power and money to
cajole, browbeat, corrupt and infiltrate EPA and state environmental agencies
to make a mockery of government oversight and regulation of their industry,
as this case of North Carolina illustrates.

We therefore urge you to investigate EPA's "special
relationship" with the hazardous waste management industry.